Citation NR: 9722928
Decision Date: 06/30/97 Archive Date: 07/02/97
DOCKET NO. 93-05 942 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUES
1. Entitlement to service connection for a right knee
disorder.
2. Entitlement to service connection for a back disorder.
3. Entitlement to service connection for hearing loss.
4. Entitlement to service connection for residuals of
malaria.
5. Entitlement to service connection for residuals of an
appendectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
C. Hancock, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to November
1945.
This case initially came before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of December
1991, in which the Wichita, Kansas, Regional Office (RO)
denied the veteran’s claims for entitlement to service
connection for osteoarthropathy and status post meniscectomy
of the right knee (right knee condition), and for status post
operative herniated nucleus pulposus of the cervical spine
with cervical radiculopathy (back condition). The Board, in
December 1994, by means of a Remand decision, requested
additional development of the evidence. Subsequent to the
December 1994 Remand decision, the RO, pursuant to various
rating decisions, denied the veteran’s claims, which are
currently on appeal.
This appeal arises from a rating decisions of December 1991
and August 1996 from the Wichita, Kansas, Regional Office
(RO).
A personal hearing was held at the RO in October 1996 before
a RO hearing officer.
REMAND
The Board notes that the veteran, on a Department of Veterans
Affairs (VA) Form 21-4138, Statement in Support of Claim,
requested that a hearing be held before a local hearing
officer in Wichita, Kansas. Subsequently, in a VA Form 9,
Appeal to the Board of Veterans’ Appeals, dated in August
1996, the veteran appeared to request a personal hearing
before a member of the Board at the RO; the “YES” box was
marked regarding the question of “Do you wish to appear
personally before a member of the Board of Veterans’
Appeals?” Additionally, the Form 9 indicates that the
veteran also checked the box indicating “I will appear
personally at a local VA before the VARO Wichita, KS.”
(Emphasis added). In October 1996, the veteran was afforded
a hearing before a hearing officer at the RO. At the
conclusion of the veteran’s October 1996 personal hearing, he
was informed by the hearing officer that “if you are not
satisfied with my decision you still have the right to
request a personal hearing before members of the Board of
Veterans’ Appeals either in Washington or before a traveling
section at this Regional Office.” The record does not
reflect that the veteran was ever contacted for purposes of
clarifying his intentions in this regard, and it is not clear
from a review of the hearing testimony whether the veteran
understood such information as merely a statement of his
appellate rights, as opposed to an inquiry requiring some
form of affirmative response in order to continue the effect
of his previously expressed intentions regarding a personal
hearing at the RO before a member of the Board. Therefore,
the Board finds that because of the ambiguous nature of the
veteran’s August 1996 Form 9, as well as the unresolved
questions presented by the hearing transcript, he should be
contacted, in the interest of ensuring his receipt of
procedural due process, to clarify whether he desires to also
be scheduled for a hearing before a member of the Board.
If the veteran answers in the affirmative, the RO should
schedule a hearing to be conducted by a Board member at the
RO. However, if the veteran declines the opportunity to have
a hearing before a member of the Board, the RO should ensure
that the additional development, set out in paragraph 2.,
below, is completed. While regretting the delay involved in
remanding this case, it is felt that to proceed with a
decision on the merits at this time would not withstand the
scrutiny of the United States Court of Veterans Appeals
(Court).
In light of the foregoing, to ensure that the VA has met its
duty to assist the claimant in developing the facts pertinent
to the claim, and to ensure full compliance with due process
requirements, the case is REMANDED to the RO for the
following development:
1. The RO should contact the veteran
through his accredited representative and
inquire whether the veteran desires a
personal hearing before a member of the
Board. If the veteran answers in the
affirmative, the RO should schedule a
hearing to be conducted by a Board
member, at the location desired by the
veteran. The RO should notify the
veteran of the date, time and place of
such a hearing by letter mailed to the
proper address. If the veteran declines
the opportunity to appear for a hearing
before a member of the Board, the RO
should ensure that the additional
development, set out in paragraph 2.
below, is completed.
2. The RO should notify the veteran that
he may submit additional evidence and
argument in support of his claims. After
securing any necessary release, the RO
should attempt to obtain records of any
treatment identified by the veteran.
Quarles v. Derwinski, 3 Vet.App. 129, 141
(1992).
(CONTINUED ON NEXT PAGE)
Thereafter, the case should be returned to the Board for
appellate consideration, if otherwise in order. The Board
intimates no opinion as to the ultimate outcome of the case.
The veteran need take no action until notified.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans’ Appeals or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans’ Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994) and 38 U.S.C.A. § 5101 (West 1991 and Supp.
1996)(Historical and Statutory Notes). In addition, VBA’s
ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and by the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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